IntroductionThe law surrounding electronic discovery continues to evolve. Within the last several months: (1) a Virginia state court has approved the use of predictive coding; (2) the U.S. District Court for the Southern District of New York upheld the magistrate judge’s ruling in Da Silva Moore v. Publicis Groupe SA that predictive coding was acceptable; (3) the Pennsylvania Supreme Court adopted a new set of e-discovery rules, rejecting the approach followed under the Federal Rules; (4) the American Bar Association issued an Interim Report on electronic discovery best practices in bankruptcy court; (5) several state bar associations have issued ethics opinions on lawyers’ duties when they receive misdirected documents or inadvertently produced metadata, and whether attorneys may publish blogs critical of other attorneys’ conduct; (6) courts continue to address the propriety of discovery requests for access to social media sites, including Twitter accounts; (7) the Second Circuit held that district courts should not base decisions under 28 U.S.C. § 1742 on whether the foreign court will admit the requested evidence; and (8) a number of courts have issued significant decisions on preservation and spoliation, criminal seizures, text message authentication, and the ability of prevailing defendants to recover eDiscovery costs and expenses. As these developments affect both practitioners and in-house counsel, we believe that the following discussion and case summaries will prove an invaluable resource.

Virginia State Court Approves Use of Predictive Coding Following on the heels of Magistrate Judge Peck’s decision in Da Silva Moore v. Publicis Groupe SA, the court in Global Aerospace Inc. v. Landow Aviation, L.P., Consolidated Case No. CL 00061040-00 (Viriginia Circuit Court Loudoun County, April 23, 2012) (J. Chamblin), ordered that the defendants could use predictive coding for the processing and production of their electronic documents over the objection of the plaintiffs.

Defendants had 250 gigabytes of reviewable information stored electronically and claimed that a human, first-

pass review was likely to cost millions of dollars and require 20,000 hours of review. Defendants suggested that predictive coding would identify at least 75% of the relevant documents and that, in combination with a “statistically sound validation protocol, will thoroughly discharge the ‘reasonable inquiry’ obligations of [Va. Supreme Ct.] Rule 4:1(g).” The plaintiffs argued in opposition that such an identification rate was too low, and that the defendants had collected every possible file in their company in order to inflate the data volume and thereby justify using predictive coding.

eDiscovery Advantage May-June 2012Volume 2, Number 2

Table of Contents

Introduction .............................................................................................. 1

Virginia State Court Approves Use of Predictive Coding ........................................................................................................ 1

U.S. District Court Upholds Use of Predictive Coding ......... 2

Pennsylvania Supreme Court Amends Civil Rules on eDiscovery—Rejects Federal Approach ....................................... 2

Preservation and Spoliation .............................................................. 3

Search and Seizure ............................................................................... 5

Search, Retrieval and Production ................................................... 7

Privilege and Waiver Issues ...............................................................8

Recovery of Discovery Costs ........................................................... 9

Stored Communications Act and Internet Service Providers .................................................................................................. 9

Computer Fraud and Abuse Act .................................................. 10

ABA Interim Report on ESI in Bankruptcy Cases....................11

Social Media – NLRB Issues Third Report on Social Media ........................................................................................................ 12

Ethics Opinions .................................................................................... 12

Social Media – Cases ..........................................................................14

Global Privacy and Cross-Border Discovery Issues ..............15

Upcoming Firm Speaking Engagements ...................................16

Recent Publications and Events ...................................................16

Featured Contributors .....................................................................16

Contact Us ............................................................................................16

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U.S. District Court Upholds Use of Predictive Coding On April 26, 2012, Judge Andrew L. Carter upheld Magistrate Judge Peck’s earlier decision to allow the use of predictive coding over the plaintiff’s objections. Da Silva Moore v. Publicis Groupe SA, 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012). Judge Carter adopted Magistrate Judge Peck’s rulings because he found “they are well reasoned and consider the potential advantages and pitfalls of the predictive coding software.”

Although Judge Carter noted that the plaintiffs and Magistrate Judge Peck disagreed about whether the plaintiffs actually agreed to the use of predictive coding, Judge Carter found that the ESI protocol employed was acceptable because it “contains standards for measuring the reliability of the process and … builds in levels of participation by Plaintiffs.” Despite rejecting as premature the plaintiffs’ arguments concerning the reliability of the predictive coding tool and methodology, Judge Carter noted that Magistrate Judge Peck had already ruled that “if the predictive coding software is flawed or if Plaintiffs are not receiving the types of documents that should be produced, the parties are allowed to reconsider their methods and raise their concerns with the Magistrate Judge.”

The plaintiffs have separately sought Magistrate Judge Peck’s recusal from the case based in part on the appearance of bias caused by Magistrate Judge Peck’s extrajudicial activities in support of predictive coding, his appearances with defense counsel on several panels discussing predictive coding, and certain comments Judge Peck has made in public forums about his decision to allow predictive coding to be used in the case. On June 15, 2012, Judge Peck denied plantiffs’ motion in a 56-page opinion.

Pennsylvania Supreme Court Amends Civil Rules on eDiscovery—Rejects Federal ApproachOn June 6, 2007, the Pennsylvania Supreme Court amended Pennsylvania’s Civil Rules to address eDiscovery. Specifically, the Pennsylvania Supreme Court amended Rule 4009.1 to include ESI within its scope and to allow a party requesting the production of ESI to “specify the format in which it is to be produced,” and a responding party to object to such production. In addition, the default standard for production of ESI if no format is specified is “in the form in which it is ordinarily maintained or in a reasonably usable form.” Moreover, under the amended Rule 4009.1, a “request seeking electronically stored information should be as specific as possible,” and “limitations as to time and scope are favored, as are agreements between the parties on production formats and other issues.”

In the explanatory comment regarding ESI, the new Pennsylvania rules make clear that “there is no intent to incorporate federal jurisprudence surrounding the discovery of electronically stored information” and that “treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law.” This standard requires the court to consider: (1) the nature and scope of the litigation; (2) the relevance of the ESI and its importance to the case; (3) the cost, burden and delay in dealing with the ESI; (4) the ease of producing the ESI and the availability of substantially similar information that can be produced with less burden; and (5) any other factors relevant to the particular situation. The explanatory comment also discusses tools for electronic searching, sampling, cost sharing and non-waiver agreements (which the Rules Committee advises should be included in court orders to maximize protection vis-à-vis third parties).

A copy of the Amended Rules and the Explanatory Comment can be found here.

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Preservation and SpoliationFederal courts continue to consider a party’s duty to preserve ESI and the appropriate sanction(s) to impose when a party has spoliated evidence. Courts note that the harsh sanctions of imposing an adverse inference or dismissing claims should be imposed only after careful consideration of the conduct at issue and a determination of whether lesser sanctions would suffice. In addition, courts continue to require parties to take measurable steps to ensure that documents are preserved, instead of relying on an oral directive to employees to preserve documents.

In Peter Kiewit & Sons’, Inc. v. Wall Street Equity Group, 2012 WL 1852048 (D. Neb. May 18, 2012), Magistrate Judge Cheryl R. Zwart held that the defendants’ conduct during discovery, including the disposal of a server after litigation had commenced, warranted both monetary sanctions and the imposition of an adverse inference. Specifically, Magistrate Judge Zwart found that the defendants: (1) made false statements to the Court concerning the existence of evidence relevant to the plaintiff’s claims; (2) disposed of a computer server while the litigation was pending; and (3) removed computer hard drives and servers from the possession of a third party after plaintiff indicated that it would subpoena the third party for electronically stored information. Such actions provided “ample evidence that Defendants intentionally submitted false evidence and testimony in bad faith, committed fraud upon this court, and intentionally destroyed evidence with a desire to suppress the truth in this case.”

In addition to imposing an adverse inference instruction, Magistrate Judge Zwart also required the defendants to pay plaintiff’s costs associated with bringing its motions to compel and for sanctions, as well as the costs associated with the forensic examination of defendants’ computer equipment. In ordering these sanctions, Magistrate Judge Zwart rejected the defendants’ argument that they should not have to pay for the

forensic examination because a “keyword search” from a computer work station did not return relevant information. In fact, she held that such a search did not constitute a “good faith search for the electronically stored information.”

Conversely, in FDIC v. Malik, 2012 WL 1019978 (E.D.N.Y. March 26, 2012), Magistrate Judge Joan M. Azrack found that further investigation surrounding the defendant law firm’s failure to preserve e-mails was needed to establish the requisite culpable state of mind before imposing an adverse inference. Magistrate Judge Azrack noted that in order to be entitled to an adverse inference, the moving party had to establish: (1) that the party having control over the evidence had the obligation to preserve it; (2) that the evidence was destroyed with a “culpable state of mind”; and (3) that the evidence was relevant to the moving party’s claims or defenses.

After finding that the defendant law firm had an obligation to preserve e-mails relating to the firm’s representation of AmTrust Bank, Magistrate Judge Azrack found that the defendant had failed to preserve these e-mails. With respect to the second prong, “culpable state of mind,” the defendant argued that its failure to preserve e-mails was not intentional, because it believed that e-mails were being backed up by the firm’s technology vendor. Before determining whether she would impose an adverse inference, Magistrate Judge Azrack decided to hold a hearing where the defendant would be allowed to present evidence concerning, among other things: (i) the back-up system that the defendant thought was in place; (ii) communications between the defendant and the vendor; (iii) the discovery that the back-up system had not been installed; (iv) any efforts by the defendants to retrieve the deleted, lost or otherwise inaccessible e-mails; and (v) other lawsuits brought against the defendants and any electronic discovery in those suits.

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Similarly, in Brigham Young University v. Pfizer, Inc., 2012 WL 1302288 (D. Utah Apr. 16, 2012), Magistrate Judge Brooke C. Wells evaluated the appropriate sanctions to impose for the defendants’ failure to preserve relevant ESI. In an earlier decision, Magistrate Judge Wells sanctioned the defendant in excess of $800,000. In doing so, Magistrate Judge Wells found that the monetary sanction was appropriate because the defendants’ conduct had not “risen to the level of willful and intentional disobedience” necessary for dismissal or adverse inferences. As Magistrate Judge Wells left open the possibility of further sanctions after the close of discovery, the Court was asked to revisit its position with respect to dismissal and adverse inferences once discovery closed.

In determining that her earlier decision denying plaintiffs’ request for terminating sanctions and adverse inferences was appropriate, Magistrate Judge Wells applied the five-factor test applied in the Tenth Circuit: (1) degree of actual prejudice; (2) amount of interference in the judicial process; (3) culpability of the litigant; (4) whether the court gave any warning of the severe sanctions for noncompliance; and (5) the efficacy of lesser sanctions.

Magistrate Judge Wells noted that the plaintiff sought to expand the defendant’s duty to preserve to include an awareness of the reasonable likelihood of litigation—from among other things the defendant’s and its predecessor’s document retention policies and existing obligations to the Federal Government. In rejecting the plaintiff’s argument, Magistrate Judge Wells noted that “[a] violation of a corporate policy does not always equate to a violation of the law” and the plaintiff “fails to establish a connection between the duty [defendant] had to itself and the duty [defendant] has to [plaintiff] to provide discovery in this litigation.” With respect to the claim that a violation of a duty defendant owed to the government should result in sanctions in the instant case, Magistrate Judge Wells held that “[a]ny recourse for such [discovery]

misconduct would belong to the Government and not a private third party.”

Additionally, Magistrate Judge Wells noted that “the passage of time can have an impact on a case—memories fade, documents become worn or lost and they can changes hands through business transactions such as mergers” and “[e]vidence may simply be discarded as a result of good faith business procedures.” Accordingly, she found that there can be no liability for inadvertent destruction of documents or misplacement of evidence that occurs before the duty to preserve attaches.

In E.E.O.C. v. Fry’s Electronics Inc., 2012 WL 1642305 (W.D. Wa. May 10, 2012), Judge Robert S. Lasnik ruled that the severe sanction of an adverse inference jury instruction was appropriate because, at a minimum, the defendant, a sophisticated corporate employer, was, or should have been, on notice that litigation could ensue when the terminated employee referred the matter to the Equal Employment Opportunity Commission (“EEOC”) after learning of his termination. The defendant was found to have destroyed evidence relating to its claim that the employee was terminated for a “decrease in [his] overall productivity and performance as a Sales Supervisor.” Judge Lasnik found the duty to preserve had already attached by the time the defendant failed to preserve sales/projection figures relating to the department for which the terminated employee was responsible. In addition, the defendant could offer not offer any justification or explanation for the destruction of two computer hard drives located in the store where the terminated employee worked.

Faced with the fact that the defendant had “effectively precluded plaintiffs from testing defendant’s claims” regarding the employee’s performance, Judge Lasnik imposed an adverse inference instruction with respect to the “validity of [the defendant’s] sales-related justification,” and allowed the plaintiffs “considerable leeway in arguing what information might

“there can be no liability for inadvertent destruction of documents or misplacement of evidence that occurs before the duty to preserve attaches”

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have been gleaned from those hard drives, inferences that could be drawn from the absence of particular documents, and defendant’s motive in destroying them.”

In Grabenstein v. Arrow Electronics, Inc., 2012 WL 1388595 (D. Colo. April 23, 2012), Magistrate Judge Kristen L. Mix declined to sanction a defendant in an employment discrimination case despite evidence that the defendant had failed to preserve relevant personnel and/or employment records as required by 29 C.F.R. § 1602.14. Magistrate Judge Mix noted that the defendant, a sophisticated corporate employer, was, or should have been, on notice that litigation could ensue when the terminated employee referred the matter to the Equal Employment Opportunity Commission (“EEOC”). Despite evidence that the defendant had not preserved all of its e-mails, Magistrate Judge Mix declined to impose sanctions because plaintiff had not proven that the defendant’s duty to preserve attached at the time such e-mails were discarded and because it was not appropriate for the court to speculate on the issue of whether other e-mails may have been spoliated or the potential evidentiary value of any missing e-mails—because the plaintiff has the burden of proving that such e-mails are in fact missing.

The court declined to impose any sanctions because: (1) the plaintiff had copies of “the only relevant e-mails that have been proven to exist” from the third party; (2) plaintiff provided no evidence that the e-mails were destroyed in bad faith; and (3) “there is no evidence to show that the e-mails were destroyed in other than the normal course of business pursuant to Defendant’s e-mail retention policy or that Defendant intended to withhold unfavorable information.”

This is not to say that courts never impose terminating sanctions. In Pringle v. Adams, 2012 WL 1103939 (C.D. Cal. March 30, 2012), Judge Josephine Staton Tucker granted the defendants’ motion for sanctions and dismissed plaintiff’s claims due to the plaintiff’s spoliation of relevant ESI. Judge Tucker noted that

the plaintiff’s duty to preserve evidence attached on July 27, 2009, when defense counsel e-mailed a preservation letter to plaintiff’s counsel. The preservation letter specifically noted defendants’ concern that material may have been altered by plaintiff and the need to “have an independent forensic computer person image” plaintiff’s entire hard drive. Despite assurances that documents would be preserved, plaintiff subsequently disposed of a hard drive and sent another in for repair without making a forensic copy of either hard drive.

Judge Tucker concluded that the prejudice to defendants was severe, as they could not explore whether plaintiff had back-dated the “creation” of the version of plaintiff’s song which plaintiff claimed defendants infringed. Although Judge Tucker noted that the defendants had other defenses, she recognized that “the creation date is fundamental to the issue of whether [the plaintiff or the defendants] created their respective songs first.” In addition, Judge Tucker found that lesser sanctions were not available because: (i) the spoliation happened before the court could compel discovery; (ii) offering a jury instruction in favor of the defendants “would leave Defendants equally helpless to rebut any material Plaintiff might use overcome the presumption” in favor of the defendants; and (iii) excluding plaintiff’s evidence of the creation date of the song at issue was “an effective dismissal.”

Search and SeizureFederal courts continue to consider the government’s right to seize and search relevant ESI. In Hawkins v. State, 723 S.E.2d 924 (Ga. 2012), the Georgia Supreme Court upheld a lower court’s determination that a police officer’s search of a cell phone incident to arrest was lawful. Plaintiff was arrested for violations of the Georgia Controlled Substances Act after agreeing, by text, to meet an undercover law enforcement officer to purchase illegal drugs. After plaintiff arrived at the agreed location, the officer observed her typing on her cell phone, after which the officer received a text

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message announcing the defendant’s arrival. Following this exchange, the plaintiff was arrested, her vehicle was searched, and the officer found the plaintiff’s cell phone in her purse. The arresting officer then searched the cell phone and located the text messages he had exchanged with the plaintiff, which he subsequently downloaded and printed.

The Georgia Supreme Court agreed that a cell phone is “roughly analogous” to a container that can properly be opened and searched for electronic data, similar to a traditional container that can be opened and searched for tangible objects and data. However, the Court cautioned that an arresting officer may not conduct a “fishing expedition” by sifting through stored data on a cell phone. Instead, the search must be limited as much as is reasonably practicable by the object of the search (e.g., when searching for a text message, there is no need for the officer to sift through photos or audio files or Internet browsing history data stored in the phone).

In Rodriguez v. State, 273 P.3d 845 (Nev. 2012), another case involving text messages, the Nevada Supreme Court recently held that text messages are subject to the same rules as other evidence regarding authentication and admissibility. The Nevada Supreme Court noted that when there is an objection to the admissibility of a text message, the proponent of the evidence “must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission.”

The government’s right to seize and search ESI is not unlimited in scope and time. In United States v. Metter, --- F.3d ----, 2012 WL 1744251 (E.D.N.Y. May 17, 2012), Judge Dora L. Irizarry held that the government’s delay in commencing any review of electronic documents seized as part of an ongoing investigation of alleged criminal activity violated the defendant’s

Fourth Amendment rights and required suppression of all such evidence obtained by the government.

The government obtained a warrant to “search, copy, image and seize the computer hardware,” and to “conduct an off-site search of the image or hardware.” The warrant also specified the categories of documents to be located. Concerned by the length of time the government was taking to complete its review of the seized data, the court ordered the government to “produce an inventory of the computers seized” and to allow defendant’s counsel to review his client’s computers “for what he or she believed to be irrelevant and privileged evidence.” However, no such inventory was provided, and the government indicated that it intended to turn over the entire contents of the hard drives and other ESI to all defendants without regard for any privilege concerns.

Judge Irizarry ultimately found that the government’s 15-month delay in even beginning to review the seized hard drives was “unreasonable and disturbing.” Further, the court found that the government’s intent to release all ESI collected to all defendants without conducting any review to determine whether the material released was covered by any privilege or within the scope of the warrant “only compounds the assault on [defendant’s] privacy concerns.” Accordingly, Judge Irizarry held that wholesale suppression of the evidence was appropriate as the government’s snapshot search (i.e., imaging the hard drives) was a “general search” for purposes of the court’s Fourth Amendment analysis and that the government’s bad faith could be “inferred from its conduct in this case.”

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Search, Retrieval and ProductionCourts continue to monitor forensic collections of electronic files saved on home computers to avoid privacy violations and to prevent evidence tampering or destruction. For example, in United Factory Furniture Corp v. Alterwitz, 2012 WL 1155741 (D. Nev. Apr. 6, 2012), Magistrate Judge Cam Ferenbach issued an order for the pre-discovery mirror imaging of defendants’ home computers. The plaintiff alleged that the defendants had gained access to plaintiff’s confidential records using a secret access or “back door” that the defendants created while they were employees. The plaintiff further alleged that the defendants had “copied, removed and/or deleted computer data, e-mails sent and received by plaintiff’s [directors], and files concerning [plaintiff’s] accounts payable and expense accounts. Concerned that the defendants’ continued use of their home computers could “cause information to be overwritten and lost,” plaintiff requested that the court order the mirror imaging of defendants’ home computers.

Although Magistrate Judge Ferenbach noted that the defendants were already under a duty to preserve relevant ESI, he found that there was good cause to order expedited discovery and to require the mirror-imaging of defendants’ computers. To mitigate defendants’ concerns that mirror-imaging would be personally intrusive, the court created a mirror-imaging protocol. First, the parties would confer and select an electronic discovery expert who would mirror image the computers. Second, defense counsel would meet with the defendants to ascertain what computers and electronic devices the defendants had in their possession and then make those devices available for mirror-imaging. Third, the computer expert’s access to the defendants’ ESI would not result in any waiver of the attorney-client privilege. Fourth, the parties had to agree on a date for the mirror-imaging, and only defense counsel could be present during the imaging. Finally, the storage device

containing the mirror-images had to be placed in a sealed envelope that would be placed in the court’s vault. To the extent that plaintiff believed that any spoliation occurred, it could ask the Court for access to the mirror images.

Facing claims that the defendant had not properly searched for and preserved evidence, in Sloan Valve Co. v. Zurn Inds. Inc., 2012 WL 1886353 (N.D. Ill. May 23, 2012), Judge Amy J. St. Eve found that the defendant’s “inadequate searches and less than forthcoming representations to the Court regarding the discovery it has undertaken in this case warrant monetary sanctions.” In so finding, Judge St. Eve specifically noted that this “case presents a perfect example of why agreeing on a comprehensive e-discovery protocol at the outset of the case is so important.”

In the course of discovery, the plaintiff sought information relating to the development of the defendant’s product. Dissatisfied with the amount of information produced by the defendant, plaintiff sought and obtained the Court’s assistance, compelling defendant to certify that it had not withheld any responsive documents and to describe the searches that the defendant had conducted. After receiving a general description of the types of activities conducted by the defendant, the plaintiff moved for sanctions, which resulted in a further order requiring the defendant to specify, among other things: (a) the identities and credentials of the IT personnel “who assisted in developing and executing any searches” for ESI; (b) the list of custodians searched; (c) the servers searched; (d) the search terms and/or filters used; (e) the steps used to process documents identified by such searches; and (f) the steps taken to preserve metadata.

After reviewing the defendant’s prior search and collection efforts, Judge St. Eve found that, among other things, the defendant’s search of the network storage drive using the “find and replace” function at the folder level was unacceptable. First, by limiting its search to the folder level, the defendant did not actually look

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at the contents of individual files and documents. Second, the Court found that the defendant’s use of the “find and replace” function to conduct its searches was unreliable because it could not perform Boolean searching, particularly given the “relatively complicated Boolean search strings and [defendant’s] counsel’s admissions that the directory text file was very large.”

Privilege and Waiver IssuesFederal courts continue to struggle with the scope and reach of Federal Rule of Evidence 502, and, specifically, what constitutes inadvertent production of documents. In Excel Gold Prods., Inc. v. MacNeill Engineering Co., Inc., 2012 WL 1570772 (N.D. Ill. May 3, 2012), Judge Harry D. Leinenweber held that “overriding fairness concerns” precluded a finding of waiver when the plaintiff had inadvertently produced a number of privileged documents. Judge Leinenweber noted that although until recently courts had applied a balancing approach to assess whether documents were inadvertently produced and whether a waiver had occurred, “Federal Rule of Evidence 502(b) now organizes those factors into a three-step process.” The “new” test requires the court to determine whether: “(1) the disclosure is inadvertent; (2) the privilege-holder took reasonable steps to prevent disclosure; and (3) the privilege-holder took prompt, reasonable steps to rectify the error.”

Defendant argued the plaintiff could not satisfy these criteria because, among other things, the plaintiff had produced the emails in question without bates-numbers and without having reviewed them for privilege prior to production. Judge Leinenweber noted that producing parties in litigation bear “no small burden” and that determining whether a party took reasonable steps to prevent disclosure of privileged information requires consideration of “a number of factors including the procedures followed to avoid producing privileged material, the volume and timing of the production, and overriding issues of fairness.” Judge Leinenweber also noted that the

producing party bears the burden of proof on these factors.

In the case at bar, Judge Leinenweber found that although the plaintiff offered little information other than that the production in this case was unquestionably large, “overriding fairness concerns preclude finding a waiver here.” He specifically noted that the defendant’s statements in response to plaintiff’s request to amend the protective order to guarantee the return of any inadvertently produced privileged document could readily have been interpreted as “a reassurance that inadvertently produced material would be returned without dispute.” Although Judge Leinenweber did not find a blanket waiver of privilege, he did require plaintiff to review the produced documents for privilege and allowed the defendant to object to any documents that the defendant believed were improperly classified as privileged.

Conversely, in D’Onofrio v. Borough of Seaside Park, 2012 WL 1949854 (D.N.J. May 30, 2012), Magistrate Judge Tonianne J. Bongiovanni held that the defendants’ unintentional disclosure of privilege documents resulted in a waiver of the privilege because the defendants “did not take prompt and reasonable steps to rectify its error.” Magistrate Judge Bongiovanni found that a series of events, including: (1) the inadvertent production of attorney electronic comments, (2) the inadvertent production of 728 pages of privileged materials, and (3) the difference between the size of the privilege log actually prepared and the number of documents initially marked privileged should have put the defendants on notice that “something had gone profoundly awry with their document production and privilege review.” As a result of the defendants’ repeated failure to review and correct their production, Magistrate Judge Bongiovanni held that under Federal Rule of Evidence 502, defendants had waived the attorney-client privilege associated with the inadvertently produced documents. However, the waiver was narrow in scope and did not subject the defendants to a broader subject matter waiver.

The “new” test requires the court to determine whether: “(1) the disclosure is inadvertent; (2) the privilege-holder took reasonable steps to prevent disclosure; and (3) the privilege-holder took prompt, reasonable steps to rectify the error.”

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Further, Magistrate Judge Bongiovanni noted certain documents bore explicit designations that such documents were “Privileged & Confidential” or “Attorney Client Confidential,” and that Rule 4.4(b) of the New Jersey Rules of Professional Conduct obligated plaintiff’s counsel to, “at a minimum, stop using the marked documents and return them to the” defendants. Although this fact weighed against finding that a waiver occurred, Magistrate Judge Bongiovanni could not overlook the defendants’ “failure to re-review their entire production after it became clear that there was something amiss with their document production and privilege review.”

Recovery of Discovery CostsFederal courts remain divided on whether eDiscovery costs are recoverable under 28 U.S.C. § 1920. In contrast to the Third Circuit’s recent holding in Race Tires Am., Inc. v. Hoosier Racing Tire Corp., in In re Online DVD Rental Antitrust Litigation, 2012 WL 1414111 (N.D. Cal. Apr. 20, 2012), Judge Phyllis J. Hamilton awarded Netflix $710,194.23 in eDiscovery costs. Although Judge Hamilton noted the existence of what she said was a “well-reasoned” decision by the Third Circuit, she noted that “in the absence of directly analogous Ninth Circuit authority, and in view of the court’s prior order … broad construction of section 1920 with respect to electronic discovery production costs—under the facts of this case—is appropriate.” Noting that the Ninth Circuit had previously held that district courts “are free to interpret the meaning and the cast of categories listed within § 1920,” Judge Hamilton allowed the cost award of $710,194.23 to Netflix.

Stored Communications Act and Internet Service Providers Working within the confines of the Stored Communications Act (“SCA”), plaintiffs have continued to seek information from

Internet Service Providers (ISPs) from which they can identify individual end users associated with Internet Protocol (IP) addresses. Two recent decisions highlight the divergent positions that courts have taken with respect to such requests. In In re Bittorrent Adult Film Copyright Infringement Cases, 2012 WL 1570765 (E.D.N.Y. May 1, 2012), Magistrate Judge Gary R. Brown quashed subpoenas directed at non-party ISPs. There, the plaintiffs sought, before the parties had completed their Rule 26(f) conference, to subpoena the non-party ISPs to obtain the names, addresses, home telephone numbers and email addresses of the subscribers corresponding to identified IP addresses that plaintiffs claimed had been used to download copyrighted material without authorization.

Under Federal Rule of Civil Procedure 26(d)(1), a party seeking discovery from any source before the Rule 26(f) conference must demonstrate good cause. To evaluate whether good cause exists, the court must weigh: (1) the concreteness of the plaintiff’s showing of a prima facie claim of actionable harm; (2) the specificity of the discovery request; (3) the absence of alternative means to obtain the subpoenaed information; (4) the need for the subpoenaed information to advance the claim; and (5) the objecting party’s expectation of privacy.

Magistrate Judge Brown found that while the plaintiffs could make a prima facie claim, they could not demonstrate that there was a reasonable likelihood that the requested discovery would lead to identifying information of the individuals who had downloaded the copyrighted material without authorization. He noted the widespread use of wireless routers and that multiple computers and multiple users can access the Internet from a single wireless router. Thus, while an IP address may lead to a particular wireless router, it does not establish a reasonable likelihood that it would lead to an individual who can be sued for copyright infringement. Magistrate Judge Brown further noted that “[m]ost, if not all, of the IP addresses will actually reflect a wireless router or

Thus, while an IP address may lead to a particular wireless router, it does not establish a reasonable likelihood that it would lead to an individual who can be sued for copyright infringement.

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other networking device, meaning that while the ISPs will provide the name of the subscriber, the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper.”

To ensure that the rights of all parties were protected, Magistrate Judge Brown decided to limit discovery to one John Doe defendant in each of the related actions, and that the remaining John Doe defendants should be dismissed without prejudice. With respect to the remaining John Doe defendants, the court held that the plaintiff was entitled to obtain only the name, address and Media Access Control address associated with a particular IP address.

By contrast, under almost identical facts, in Patrick Collins Inc. v. Does 1-39, 2012 WL 1432224 (D. Md. Apr. 24, 2012), Judge Alexander Williams Jr. denied defendants’ motion to quash plaintiff’s subpoena to certain ISPs. The plaintiff knew the IP address of each John Doe, but not his or her real name or address. Judge Williams granted plaintiff leave to file a third-party subpoena on the ISPs so that the plaintiff could discover the identity of the defendants. After receiving the subpoenas, the ISPs notified their subscribers. As a result, several John Does filed motions to quash the subpoena pursuant to Federal Rule of Civil Procedure 45(c)(3)(A)(iv) on the grounds of undue burden and harassment. In denying the motions to quash, the court found the defendants’ arguments unavailing because identification was necessary for the plaintiff to enforce his copyrights. Further, Judge Williams found that such subpoenas do not unduly burden the defendants because the “subpoena is directed toward the ISPs and not the Doe Defendants.”

To further highlight the divergent approaches employed by district courts, in Special Markets Insurance Consultants Inc. v. Lynch, 2012 WL 1565348 (N.D. Ill. May 2, 2012), Magistrate Judge Geraldine Soat Brown quashed the third-party subpoenas served on Verizon Wireless and Yahoo. In doing so, Magistrate Judge

Brown found that: (1) the civil defendants had standing to quash the subpoenas; (2) the subpoenas were improper under the Stored Communications Act; and (3) the subpoenas were overly broad.

At the outset, the Court found that the defendants had standing to quash the subpoena under Federal Rule of Civil Procedure 45(c)(3) which grants “a person” unduly burdened by a subpoena standing to quash it. Magistrate Judge Brown found that the phrase “a person” is not limited to the person receiving the subpoena. She also found that the defendants had standing under Federal Rule of Civil Procedure 26(c)(1), which allows the court to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Magistrate Judge Brown ultimately held that the subpoenas violated the SCA, which prohibits electronic communication services from divulging “to any person or entity the contents of a communication while in electronic storage by that service ….”

But even if the subpoenas had not violated the SCA, Magistrate Judge Brown would have granted a motion for a protective order because she held that the subpoenas were “grossly overbroad” and not “reasonably calculated” to lead to the discovery of admissible evidence.

Computer Fraud and Abuse ActIn United States v. Nosal, 676 F.3d 854 (9th Cir. 2012), the Ninth Circuit found that under the Computer Fraud and Abuse Act (“CFAA”), the phrase “exceeds authorized access” does not extend to violations of employer-imposed use restrictions. There, the defendant, a former employee of an executive search firm, convinced some of his former co-workers to establish a competing business and to use their log-in credentials to download confidential information for the purpose of transferring the confidential information to defendant. The government indicted the defendant on, among other things, charges that he violated Section 1030(a)(4) of the

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CFAA (18 U.S.C. § 1030(a)(4)) by aiding and abetting his former colleagues in exceeding their authorized access with intent to defraud.

Under the CFAA, the phrase “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information that the accesser is not entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6). Although the trial court initial denied defendant’s motion to dismiss, after the Ninth Circuit’s decision in LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Circuit 2009), the trial court held that the phrase “exceeds authorized access” did not extend to misappropriating information that an individual could legitimately access but where corporate policies limited the individual’s use of such information.

In upholding the district court’s decision, the Ninth Circuit found that extending the CFAA to include misappropriation of data that an individual was authorized to access “would transform the CFAA from an anti-hacking statute into an expansive misappropriation statute.” The Ninth Circuit recognized that its decision in this case was in contrast to decisions of its sister circuits which “interpret the CFAA broadly to cover violations of computer use restrictions or violations of a duty of loyalty.” However, the Ninth Circuit noted that “these courts looked only at the culpable behavior of the defendants before them, and failed to consider the effect on millions of ordinary citizens ….”

ABA Interim Report on ESI in Bankruptcy CasesOn March 15, 2012, the American Bar Association’s Electronic Discovery (ESI) in Bankruptcy Working Group (the “Working Group”) published an interim report addressing certain principles and suggested best practices for electronic discovery in bankruptcy cases (the “Interim Report”). The Working Group was formed to study and prepare guidelines or a “best practices” report on the scope and timing of a party’s obligation to preserve ESI in bankruptcy cases. The

Interim Report, which is designed to invite and stimulate comments from a wider audience, draws distinctions between three separate groups of bankruptcy cases: (1) large Chapter 11 (corporate reorganization) cases; (2) middle-market and smaller Chapter 11 cases; and (3) Chapter 7 (liquidation) and Chapter 13 (personal reorganization) cases.

The Interim Report sets forth four general principles that apply in the bankruptcy context. First, the duty to preserve ESI and other evidence applies in bankruptcy cases. The duty may arise prior to the filing of the petition (e.g., when the filing of the petition or other potential litigation is reasonably anticipated). Second, debtors do not need to preserve every piece of information in their possession. Rather, the duty to preserve applies to information that a debtor “reasonably anticipates may be needed in connection with the administration of the bankruptcy case or the proceedings therein or operation of the business or affairs of the debtor.” Third, proportionality concerns are important in the bankruptcy context. A party’s obligation to preserve ESI “should be proportional to the significance, financial or otherwise, of the matter in dispute and the need for production of ESI in the matter.” Fourth, interested parties are encouraged to confer regarding preservation and production issues, as this can help resolve unnecessary disputes that would otherwise delay a bankruptcy.

The Working Group also notes that for large Chapter 11 cases, best practices include: (i) reviewing ESI-related matters with the client; (ii) gaining an understanding of the client’s electronic information systems; (iii) implementing appropriate preservation measures (e.g., litigation holds); and (iv) appointing a primary point of contact (both internally and externally) for ESI-related issues. At the filing of a large Chapter 11 case, counsel should consider whether there is a need for court approval of an interim ESI protocol that addresses pertinent ESI issues (e.g., preservation efforts). The Working Group also recommends that the debtor “consider formulating and

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proposing” such ESI protocol at or before the final hearing on Rule 4001 matters. The ESI protocol should include a provision in accordance with Federal Rule of Evidence 502(d) that addresses the non-waiver of privileges and work product protection when ESI is disclosed inadvertently.

Although the Working Group’s recommended best practices change for smaller Chapter 11 and Chapters 7 and 13 bankruptcy cases (e.g., the timing of and necessity for ESI protocols), the main thrust of the Interim Report is that ESI is an important aspect of bankruptcy cases, and parties are well served to consider ESI (including preservation obligations) at an early stage. The full text of the Interim Report is available here.

Social Media – NLRB Issues Third Report on Social Media The NLRB Office of General Counsel issued a third report addressing employers’ use of social media policies. The report summarizes the NLRB’s review of the social media policies of seven companies and its findings with respect to whether such policies impermissibly inhibit employees’ rights to discuss the terms and conditions of their employment with other employees and third parties. The social media policies reviewed by the NLRB address, among other things: (1) rules governing employees’ use of social media; (2) guidelines on privacy, legal matters, online tone and resolving concerns; and (3) protecting information, expressing opinions, and bullying.

According to the NLRB, policies that seek generally to prevent the “release of confidential guest, team member or company information,” are inappropriate absent specific examples that clarify that the restriction does not apply to an employee’s right to discuss wages and conditions of employment with other employees and third parties. Similarly, the NLRB considers policies that seek to require employees to be “completely accurate and not misleading” in any posts

to social media sites to be overbroad and lacking specific examples or guidance. In addition to addressing other provisions the NLRB finds to be overbroad, the report includes a sample social media policy that the NLRB finds acceptable.

On the whole, the report finds that policies and rules that are ambiguous regarding their application to protected activity and contain “no limiting language or context to clarify that the rules do not restrict” an employee’s right to engage in protected activity are unlawful. However, employer policies and rules “that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful.”

The full report can be viewed here. Winston & Strawn LLP’s briefing on the recent NLRB reports can be found here.

Ethics Opinions Two recent ethics opinions (Washington and New York) address a lawyer’s ethical obligations when metadata is inadvertently produced or documents are misdirected. A third ethics opinion, also from New York, addresses whether an attorney can host or participate in a blog dedicated to publishing factually accurate criticism of another lawyer’s professional conduct.

Inadvertently Produced Documents and Metadata

Washington

The Washington State Bar Association Ethics Committee recently issued an Advisory Opinion on attorneys’ obligations concerning inadvertently produced metadata. Advisory Opinion 2216 discusses lawyers’ ethical obligations when producing and receiving documents containing metadata and the propriety of the recipient using forensic software to recover metadata not “readily accessible through standard processing software.” Generally, an attorney has an ethical duty to “‘act competently’ to protect from

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disclosure the confidential information that may be reflected in a document’s metadata” before sending it to opposing counsel. This duty includes protecting information relating to the representation of the client unless the client has given informed consent or the disclosure is impliedly authorized to carry out the representation of the client. The Advisory Opinion notes that an attorney “must act ‘competently’ to safeguard such metadata ‘against inadvertent or unauthorized disclosure.’”

Accordingly, the Advisory Opinion concludes that the lawyer “must make reasonable efforts to ensure that electronic metadata reflecting protected information is not disclosed in conjunction with the exchange of documents related to a representation,” which can be done through production in formats that do not include metadata (e.g., hard copy or PDF) or by scrubbing metadata from electronic documents using software designed for that purpose. The Advisory Opinion notes that the duty to protect against the disclosure of protected material does not obviate the obligation to refrain from altering, destroying, or concealing a document or other material having potential evidentiary value.

The Advisory Opinion also addresses the ethical obligations of attorneys who receive documents containing metadata that includes protected information. First, when the receiving attorney knows or reasonably should know that a document containing such protected information was inadvertently sent, the receiving attorney has an ethical duty to “promptly notify” the sending attorney of the inadvertent production. However, the Advisory Opinion notes that the receiving attorney “is not [ethically] required to refrain from reading the document.” Nor is the receiving attorney required to return the inadvertently-produced document and/or metadata, absent a legal duty separate and apart from the governing ethical rules. Importantly, the Advisory Opinion cautions that the receiving attorney should not use “special software to recover, from

electronic documents, metadata that is not readily accessible.” The full text of the Advisory Opinion is available here.

Most State Ethics opinions agree with the Washington Bar’s prohibition against metadata “mining” in produced documents. However, an ABA formal Opinion and a few states do allow metadata “mining.” (CO, MD, VT, and in certain situations, PA and MN). The ABA’s survey of state ethics metadata options can be viewed here.

New York

The New York City Bar Association’s Ethics Committee recently issued an opinion modifying the obligations of lawyers who receive misdirected documents under the New York Rules of Professional Conduct. Opinion 2012-1 marks a shift from an earlier ethics opinion that required lawyers to stop reading a misdirected document and then to either return the document or destroy it on request. Under this new opinion, the Ethics Committee notes that Rule 4.4(b) requires a lawyer who receives a mistakenly sent document to “promptly notify” the sender of the receipt of such document. However, the Ethics Committee states that the lawyer receiving the document has no other obligations under the New York Rules of Professional Conduct “with respect to retention, return, destruction, review or use of the document or its contents.” The Ethics Committee does acknowledge that a lawyer’s retention, review and/or use may subject the attorney to sanctions under existing case law. These concerns do not apply, however, when the document is deliberately sent to the lawyer’s attention.

For purposes of Rule 4.4.(b) and Opinion 2012-1, a “document” is broadly defined to include paper correspondence, emails, voicemails, and any other communication that may be read or transcribed and this rule applies regardless of the sender’s identity; whether a lawyer, a client, a third party, or a tribunal. Unlike Advisory Opinion 2216, above, Opinion 2012-1 does not address the ethical considerations

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associated with the inadvertent disclosure of metadata. Instead, the Ethics Committee notes that metadata associated with a document is not covered by Rule 4.4(b) and is instead governed by New York State Ethics Op. 782, 21 Law Man. Prof. Conduct 39 (2004). The full opinion can be viewed here.

Posts Concerning Lawyer’s Professional ConductNY Committee on Professional Ethics Opinion No. 912 addresses whether an attorney may host or participate in a public blog forum concerning the professional conduct of another practicing attorney. While N.Y. Rule of Professional Conduct 8.2 addresses lawyer criticism of Judges, there is no comparable Rule covering criticism of lawyers. Instead, Opinion 912 notes that such conduct is informed by Rule 8.4(c), which prohibits an attorney from engaging in conduct “involving dishonesty, fraud, deceit or misrepresentations” and Rule 8.4(d) which prohibits conduct that is “prejudicial to the administration of justice.” The Ethics Opinion concludes that the NY Rules of Professional Conduct do not prohibit an attorney from hosting or participating in a blog dedicated to publishing criticism of another attorney’s professional conduct as long as the criticism is “sufficiently accurate and in context.” However, Opinion 912 urges lawyers to avoid petty or disparaging criticisms, and “to make critical statements only when motivated by a desire to improve the quality of … the legal system in general.” The full opinion can be viewed here.

Social Media – CasesIn contrast to earlier decisions holding that Facebook postings are entitled to First Amendment protection, in Bland v. Roberts, --- F.Supp.2d ----, 2012 WL 1428198 (E.D. Va. Apr. 24, 2012), Judge Raymond A. Jackson held that simply “liking” a Facebook page does not constitute “speech” subject to constitutional protections. Instead, Judge Jackson found that simply “liking” a Facebook page “is

not the kind of substantive statement that has previously warranted constitutional protection.” On the plaintiffs’ motion for summary judgment, Judge Jackson held that although Facebook posts “can be considered matters of public concern,” the plaintiffs had not offered evidence that they had engaged in “sufficient speech to garner First Amendment protection.”

A recent decision of the Supreme Court of New York, New York County held that an individual does not have a privacy interest in his Tweets, and that as long as the state meets its burden under the SCA, it can subpoena Twitter to produce an individual’s Tweets. In State v. Harris, --- N.Y.S.2d ----, 2012 WL 1381238 (N.Y. Crim. Ct. Apr. 20, 2012), Justice Matthew A. Sciarrino found that a criminal defendant does not have standing to quash a subpoena duces tecum sent to Twitter to recover the defendant’s Tweets. While evaluating the defendant’s standing to quash the subpoena, the court relied heavily upon Twitter’s Terms of Service, noting that under the Twitter Terms of Service, every time the defendant used Twitter he was granting Twitter a license to “use, display and distribute the defendant’s Tweets to anyone and for any purpose it may have.” Accordingly, Justice Sciarrino found that the defendant did not have a privacy interest in his Tweets.

In addition, the court held that the subpoena was proper under the SCA. The SCA permits the government to compel disclosure of, among other things: (1) basic subscriber and session information; and (2) the contents of any electronic communication held by a provider of a remote computing service. Justice Sciarrino noted that the state had shown the requisite “specific and articulable facts showing there are reasonable grounds to believe” that the defendant’s Tweets were “relevant and material to an ongoing criminal investigation.” Thus, the Court ordered Twitter to comply with the subpoena.

‘... simply “liking” a Facebook page does not constitute “speech” subject to constitutional protections.’

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Global Privacy and Cross- Border Discovery IssuesIn Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76 (2d Cir. 2012), the Second Circuit reversed the district court’s decision to quash subpoenas seeking discovery under 28 U.S.C. § 1782 for use in a securities fraud action filed in Germany. Under Section 1782, a district court may order discovery where: (1) the person from whom discovery is sought resides (or is found) in the district of the district court to which the application is made, (2) the discovery is for use in a foreign proceeding before a foreign tribunal, and (3) the application is made by a foreign or international tribunal or any interested person.

The district court granted the motion to quash because it found that the German

tribunal was unlikely to admit the materials into evidence. However, in reversing the district court’s ruling, the Second Circuit held that district courts should not consider the admissibility of evidence in the foreign proceeding when ruling on a Section 1782 application. In doing so, the Second Circuit found that there is no statutory basis for an admissibility requirement and such a requirement would “thwart § 1782(a)’s objective to assist foreign tribunals in obtaining relevant information that the tribunals may find useful but, for reasons having no bearing on international comity, they cannot obtain under their own laws.” In addition, the Second Circuit also found that there is no need for district courts to worry about issues of parity because the ultimate admissibility of the evidence is determined by the foreign tribunal, and that requiring district courts to interpret and analyze the admissibility laws of a foreign jurisdiction is “fraught with danger.”

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These materials have been prepared by Winston & Strawn LLP for informational purposes only. These materials do not constitute legal advice and cannot be relied upon by any taxpayer for the purpose of avoiding penalties imposed under the Internal Revenue Code. Receipt of this information does not create an attorney-client relationship. No reproduction or redistribution without written permission of Winston & Strawn LLP.

© 2012 Winston & Strawn LLP

Winston & Strawn LLP’s eDiscovery & Information Management Practice Group (the “eDiscovery Group”) brings years of “real world” experience and offers our clients and case teams the full continuum of services along the electronic discovery reference model behind our own firewall. Our services include preservation, collection, early case assessment, processing, hosting, and review. The eDiscovery Group also offers a wide variety of consulting services, including eDiscovery risk assessments, eDiscovery response programs, vendor selection, training of legal and technical staffs, data mapping, legacy retirement and records retention programs.

Upcoming Firm Speaking Engagements June 26, 2012 John Rosenthal, Overpreservation in Response to the Duty to Preserve: Fact or Fiction or Both? (Bloomberg BNA Live Webinar)

September 19, 2012 John Rosenthal PLI Webcast Electronic Discovery Guidance 2011: In-house Counsel’s Guide to e-Discovery: Everything You Need to Know

Recent Publications and Events April 18, 2012 John Rosenthal and Sheryl Falk Winston & Strawn LLP eLunch Webcast E-Discovery and Privacy Implications for Multi-national Companies – Cross-Border Privacy Issues

April 17, 2012 John Rosenthal Exterro Webcast, U.S. Data Privacy Laws Challenge the E-Discovery Process

May 23, 2012 John Rosenthal, Building a Scalable E-Discovery Process to Fit Your Organization’s Needs (Computer Enterprise and Investigations Conference, Las Vegas 2012)

May 24, 2012 Cheryl Falk, Is Your 30(b)(6) E-Discovery Witness Prepared to Testify? (Computer Enterprise and Investigations Conference, Las Vegas 2012)

Featured Contributors The Editors wish to thank Paul Flucke, Esq.,; Melinda Lackey, Esq.; Anna Lamut, Esq.; and Martin Geagan, Esq. for their invaluable contributions to the content of this issue.

Contact Us If you have questions about the items in this issue of eDiscovery Advantage, would like to learn more about these cases or other eDiscovery matters, or would like to be added to the mailing list, please contact one of the following:

New YorkChristopher C. Costello, Esq. (Editor) cccostello@winston.com +1 (212) 294-3336Scott M. Cohen (Director of eDiscovery Services) scohen@winston.com +1 (212) 294-3558

Washington, D.C. John J. Rosenthal, Esq. (Chair, eDiscovery Group) jrosenthal@winston.com +1 (202) 282-5785Pamela A. Rons, Esq. (Editor) prons@winston.com +1 (202) 282-5746